RIAA “extortion”: why the only RICO they fear is Suave

Is the RIAA engaged in racketeering? Ars talks to legal experts about the …

Since launching its legal campaign against those it suspects of file-sharing, the RIAA has been called any number of nasty things. Some commentators have gone so far as to call its onslaught of lawsuits an exercise in extortion. Others have likened the RIAA to a criminal organization and raised the issue of the Racketeer Influenced and Corrupt Organizations (RICO) Act and whether it would apply to the RIAA. We've received a few e-mails from our readers wondering about RICO and the RIAA, so we decided to dig into the topic ourselves.

If you've watched The Sopranos for any length of time, you're probably at least passingly familiar with RICO. Enacted in 1970, RICO allows for additional jail time in the case of criminal prosecutions—and heavier civil penalties for lawsuits—if the person or entities involved are found to be part of an ongoing criminal enterprise. When first enacted, it was used exclusively for fighting organized crime, but by the 1980s its reach had been extended to cover accounting firms assisting criminal enterprises and to target pro-life groups engaged in anti-abortion protests. Can it be extended to a music cartel?

One RICO allegation so far

Although the questions about RICO have been asked on numerous occasions, only two file-sharing case that we are aware of have raised the issue of RICO so far: Atlantic v. Andersen, where the record labels accused a disabled Oregon mother of copyright infringement, and Sony v. Scimeca from 2004. In her Answer and Counterclaim filed in September 2005, Andersen accused the record companies suing her of violating the Oregon (not federal) Racketeer Influenced and Corrupt Organization Act.

"As fully set forth above, the record companies hired MediaSentry to break into private computers to spy, view files, remove information, and copy images," reads Andersen's answer. "The record companies received and transmitted the information and images to Settlement Support Center. As the record companies' agent, Settlement Support Center then falsely claimed that the stolen information and images showed Ms. Andersen's downloading and distributing over 1,000 audio files. The record companies falsely claimed that Ms. Anderson owed hundreds of thousands of dollars in an attempt to coerce and extort payment from her. "

She concludes that the "unlawful activities" were not isolated events: "The record companies have repeated these unlawful and deceptive actions with many other victims throughout the United States." She's right: the RIAA has operated in the same manner in just about every case it has filed. But do the RIAA's legal practices, including the alleged extortion, bring the music industry under the RICO umbrella?

Does RICO apply to the RIAA?

Ars spoke with Rich Vasquez, a partner in the business and technology group at Morgan Miller Blair. In addition to his experience in technology-related litigation, he has a long history with RICO, having represented former Philippine president Ferdinand Marcos in a RICO action back in the 1980s. Vasquez told Ars that in civil litigation, RICO charges are often made to score points in the arena of public relations. "People take a strategic shot at a RICO claim to try to up the timbre of debate," said Vasquez. He's not optimistic that Andersen's—or any other—RICO charges will bear fruit.

"Right off the bat there are some problems with the predicate claims for RICO," explained Vazquez. "You have to have a pattern of racketeering activity: either criminal acts where there is a one-year jail penalty, or mail or wire fraud." Any RICO action brought against the RIAA would have to focus on the wire fraud component, likely accusing the record labels of poking around someone's PC without permission. That's the angle Andersen took, accusing the RIAA of directing "its agents to unlawfully break into private computers."

The weakness with that argument comes from Kazaa itself. For those defendants who actually have been engaged in file-sharing, their shared folders are open for anyone using the service to see—including the RIAA's investigative arm, MediaSentry. "There's no reasonable expectation of privacy, given [Kazaa's] settings," notes Vasquez. As a result, the wire fraud claims are unlikely to hold weight.

Vasquez believes that the RIAA could be vulnerable to charges of malicious prosecution, but even that would be difficult. "It would likely take someone on the inside testifying that the RIAA pursued people that it knew were innocent," Vasquez explained. "Then there would be a serious risk of malicious prosecution. But you've got to have them cold."

If there were cases of serial malicious prosecution, a group of prevailing file-sharing defendants could potentially band together for a class-action suit. "You'd have to have a lot of winners," said Vasquez. "If you have enough people bringing charges of malicious prosecution, you could then show a pattern of practices on the part of the RIAA. But the testimony from a former RIAA or label employee—if it exists—would be key."

At the end of the day, the RIAA may be a lot of things, but a criminal enterprise engaged in racketeering is not one of them. Federal law gives copyright holders the ability to seek recompense via the court system via civil cases, and that's what the RIAA is doing. Atlantic v. Andersen is still making its way through the courts, and the judge has yet to rule on Andersen's counterclaim, including the RICO allegations.

The question of whether the RIAA has taken a wise course of action is another matter entirely, and few people outside of record label boardrooms and RIAA offices would argue that they have. The group has hundreds of settlements at a few thousand dollars apiece under its belt, a Himalaya-sized mountain of negative press, and the prospect of writing some rather sizable checks for the attorneys of the wrongfully accused (which is why the RIAA doesn't want defendants exonerated). But until the laws are changed or the RIAA tires of its legal campaign, it will be business as usual... without any threat from RICO.